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Monday, February 18, 2013

Congress Mapping the Human Brain: Is the Oxymoron Constitutional?

In his 2013 State of the Union Address, President Obama
cited brain research as an example of how the government should “invest in the
best ideas.” He pointed to the $140 return to the economy from every dollar
that had been invested to map the human genome. He added that funding the Brain
Activity Map would be a job-creating investment in science and innovation. In
terms of comparative advantage, enlarging the “knowledge economy” in the U.S.
is a good strategy for being able to maintain a formidable standard of living.
That the federal government has any
constitutional basis to be funding a map of the human brain is a question the
American president seems not to have considered. The question ought to be more
salient in “industrial” policy debates. Indeed, it is not as though the economic
and political domains were so disparate that consideration can effectively be
delimited to matters of return on investment to the economy as a whole. By
extension, what are taken as purely economic considerations in the E.U., as if
it were solely an economic union, actually involve the political dimension.

A Congressional rendering of how the human brain might be mapped? Source; nytimes.

As for whether Congress could constitutionally fund
scientists to map the human brain, one would probably point to the spending
clause of the U.S. Constitution, whereby the Congress has the authority to
spend “for the general welfare.”Scientific advancement, it could be argued, is in line with the general
welfare. The problem is that under this rationale, practically any “investment”
would be in the public welfare, even if only as a byproduct. It would be
difficult to find an instance of public spending that does not have any
externality in the sense of benefitting the public generally. Were the spending
clause not subject to, or limited by, the enumerated, or explicitly listed,
powers of Congress, those powers would not be limited. So by logic or reason
alone, it stands to reason that the
spending clause must have been intended to furnish Congress with the authority
to fund its enumerated powers.

Turning to the enumerated powers of Congress, one might
argue that the commercial implications from mapping the human brain qualify the
funding as within the interstate commerce clause of the U.S. Constitution.
However, for something to have implications
for commerce generally—not even specifically interstate—means that that thing is not itself commerce. Even if the activity funded were commerce, it
would presumably have to be that which is conducted across state lines. Furthermore, to argue that the regulating of interstate commerce
extends to investing in the commerce itself twists the definition of
regulation, which is to set rules.

President Obama could be challenged for his presumption that
the federal government is the definitive level of government for virtually any
matter of public policy to be enacted into law. To be sure, Alexander Hamilton,
a delegate to the Constitutional Convention and the first U.S. Treasury
Secretary, had wanted the states to be mere districts implementing federal
policy. Of course, he also wanted the U.S. President to be in office for life.
That he had not been born and raised in any of the colonies that would become
the United States may explain his alien political philosophy from an American
standpoint. Barak Obama, while doubtlessly born in Hawaii, lived abroad in his
formative years. This may be why he has been susceptible to what Sandra Day O’Conner
said is Congress “acting like a state legislature.” That is to say, Barak Obama
may not have fully realized the distinctiveness
of federal government on the empire scale. In other words,
that the Founders deliberately gave the U.S. Federal Government the imperial powers that the King of England
had in governing the British Empire is
probably a point that the future American President would have missed while at
school as a boy in Indonesia.

Generally speaking, as the American electorates lose their
sense of what these United States are, we increasingly run the risk of having
the ship of state operated in ways that are at odds with its design and essence
as an entity. Put another way, if you forget who you are and begin to act in
ways that are at odds with who you really are, you are undoubtedly headed for
trouble—if not soon, then eventually.